From 2026, electronic legal transactions should be possible completely without paper, but this could cause problems for defendants in custody.
Criminal investigations sometimes involve various police and judicial authorities, and the resulting files can contain stacks of paper several metres thick. Many documents exist in digital form and are still printed out for the files. The German state of Baden-Wuerttemberg is now the first to introduce an “electronic criminal record”. It is intended to facilitate the exchange between the authorities involved, as Baden-Wuerttemberg’s Minister of Justice Marion Gentges (CDU) announced at the presentation of the project called “eStrafakte” in Ulm on Tuesday. According to a projection, 50,000 sheets of paper arrive in the post office of the police headquarters there alone every day.
In the city on the Danube, the project will first be tested by the police, the public prosecutor’s office and the district court. The exchange of information takes place via an encrypted connection. In this way, the police can, among other things, request permits for the surveillance of suspects and subsequent coercive measures from the district court at the click of a mouse. Judges and public prosecutors can view the “electronic criminal record” at any time, they have write access and may add content.
In 2025, the “electronic criminal file” is to be used throughout the state, announced Thomas Strobl (CDU), the state interior minister who used to work as a lawyer. Strobl and Gentges call the pilot project a “milestone”. It is part of the digitisation of the justice system in Baden-Wuerttemberg, for which the state has spent a total of 40 million euros since 2015. The “electronic criminal file” has so far cost 1.5 million euros, with a further ten million euros per year until 2025.
By 2026, all German states must introduce such a system, as required by a “Law on the Introduction of the Electronic Criminal File and on the Further Promotion of Electronic Legal Transactions” passed by the Bundestag in 2016. The Laender and the Federal Government have joined forces in three networks for this purpose. Four implementing regulations were issued for the execution; they regulate the organisational and technical framework conditions of the “electronic criminal file”. Most of its documents will be created as PDF files, the file format developed by the software company Adobe is already specified in the German Code of Criminal Procedure for the preferred exchange. However, image, Excel or Word files can also be saved as attachments, as well as videos and sound files.
It is questionable how the “electronic criminal file” will be implemented in practice. For example, the completely digital storage of files could jeopardise the right of those affected to view the entire contents of the file at any time in criminal proceedings. In pre-trial detention, however, the necessary access to a computer is likely to be denied in many cases, and the use of storage media is also generally prohibited in prison. The German Lawyers’ Association, which represents about 67,000 members, had drawn attention to this in a statement on the law.
The German system could also facilitate the European exchange that the EU member states are currently preparing in a “European Criminal Records Information System” (EPRIS). This will allow the police in all participating countries to query whether a criminal investigation is already on file against a certain person. However, the foreign authorities do not have direct access to the underlying files; this first requires an application within the framework of European mutual legal assistance in criminal matters.
Image: Prison in Berlin/ Moabit, Fridolin freudenfett (Peter Kuley) – Eigenes Werk, CC BY-SA 3.0.
